Ivan Hoffman, B.A., J.D.
The United States Constitution (Article III, Section 3) defines “treason” as follows:
Thus, the Constitution has a number of requirements that must be satisfied for the crime to be committed.
First: there must be either the act of “levying War” against the United States or the party charged must have been “adhering” to the Enemies of the United States;
Second: the accused must be “giving [the Enemies] Aid and Comfort;” and
Third: there must be proof by the “Testimony of two Witnesses to the same overt Act, or on Confession in open Court.”
The second section makes it clear that the punishment under British common law—which extended to the relatives of the person convicted and whose property could be taken as a result—would not be applicable in the United States. Any “Forfeiture” would also not extend beyond the life of the convicted person.
The federal criminal law (18 USC, section 2381), tracks the above Constitutional definition, as follows:
Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason and shall suffer death, or shall be imprisoned not less than five years and fined under this title but not less than $10,000; and shall be incapable of holding any office under the United States.
Thus the framers of the Constitution were careful to narrowly define “treason” so as not to allow it to be used against political opponents based upon acts, real or imagined, other than as so narrowly defined.
In defining “adhering to their Enemies,” the United States Supreme Court said that merely “adhering” was not sufficient; the “adhering” had to give the Enemies “Aid and Comfort.” “Adhering” requires an “intent to betray.” In Cramer vs. United States (325 U.S. 1 (65 S.Ct. 918, 89 L.Ed. 1441), decided in 1945, the Court gave this explanation:
Treason of adherence to an enemy was old in the law. It consisted of breaking allegiance to one's own King by forming an attachment to his enemy. Its scope was comprehensive, its requirements indeterminate. It might be predicated on intellecutal [sic] or emotional sympathy with the for, or merely lack of zeal in the cause of one's own country. That was not the kind of disloyalty the framers thought should constitute treason. They promptly accepted the proposal to restrict it to cases where also there was conduct which was 'giving them aid and comfort.'
'Aid and comfort' was defined by Lord Reading in the Casement trial comprehensively, as it should be, and yet probably with as much precision as the nature of the matter will permit:
'* * * an act which strengthens or tends to strengthen the enemies of the King in the conduct of a war against the King, that is in law the giving of aid and comfort' and 'an act which weakens or tends to weaken the power of the King and of the country to resist or to attack the enemies of the King and the country * * * is * * * giving of aid and comfort.'
Thus the crime of treason consists of two elements: adherence to the enemy; and rendering him aid and comfort. A citizen intellectually or emotionally may favor the enemy and harbor sympathies or convictions disloyal to this country's policy or interest, but so long as he commits no act of aid and comfort to the enemy, there is no treason. On the other hand, a citizen may take actions, which do aid and comfort the enemy—making a speech critical of the government or opposing its measures, profiteering, striking in defense plants or essential work, and the hundred other things which impair our cohesion and diminish our strength but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.
What is an Overt Act?
Recall that the Constitutional provisions require that proof be established by “two Witnesses to the same overt Act…” The “overt Act” can only consist of levying war and all accused parties must have participated in the said Act.
A bit of legal explanation here may help: under English common law and statutory law in the United States, all parties that participate in a criminal act are equally guilty of the act irrespective of what role they may have played in the participation. The driver of the getaway car is equally guilty with those that do the actual bank robbery, for example. However, under the Constitutional standards defining “treason,” courts have said that the Constitution apparently intended to create a narrower form of liability separate from the above common or statutory law. If the acts showed that a defendant was part of the prosecution of the war, they could be guilty of treason. But if the defendant’s conduct were not part of that prosecution of the war, they could not be guilty of that crime even though they may, under common or statutory law, be guilty of another crime.
In other words, because of the language of the Constitution, any party accused of “treason” must actually have been part of the same “overt Act,” and that “overt Act” must be levying war against the United States or “adhering…” But in all instances, a declared or open war is required. (see more below) It is not enough that the parties may conspire to levy war if there is no actual war levied.
The foundational case in the United States takes us back to 1807 when the Supreme Court decided United States vs. Burr (25 Fed. Cas. 55, no. 14,693 C.C.D.Va. 1807). In that case, one of our early and very important justices, John Marshall, wrote the opinion in which he quoted an earlier decision that stated:
"The court are of opinion that if a body of people conspire and meditate an insurrection to resist or oppose the execution of a statute of the United States by force, they are only guilty of a high misdemeanor; but if they proceed to carry such intention into execution by force, that they are guilty of the treason of levying war; and the quantum of the force employed neither increases nor diminishes the crime; whether by one hundred or one thousand persons is wholly immaterial….”
In Cramer vs. United States, 325 U.S. 1, (cited above) the Supreme Court summarized the standard for what constitutes an “overt Act” sufficient to warrant guilt of treason.
"Overt acts are such acts as manifest a criminal intention and tend towards the accomplishment of the criminal object. They are acts by which the purpose is manifested and the means by which it is intended to be fulfilled."
This question was further addressed by the Supreme Court in 1947 in the case of Haupt v. United States, 330 US 631. These were the facts in summary form: the defendant Hans Max Haupt was the father of another party, Herbert, who was convicted of being a saboteur against the United States in its war with Germany. The defendant Haupt was charged with treason for “sheltering his son, assisting him in getting a job, and in acquiring an automobile, all alleged to be with knowledge of the son's mission,…..” (330 US 631, 633)
The Court stated:
We have held that the minimum function of the overt act in a treason prosecution is that it show action by the accused which really was aid and comfort to the enemy. Cramer v. United States, 325 U.S. 1, 34. This is a separate inquiry from that as to whether the acts were done because of adherence to the enemy, for acts helpful to the enemy may nevertheless be innocent of treasonable character. (330 US, 631, 635)
The Court in Haupt, citing to Cramer, continued:
We did not set aside Cramer's conviction because two witnesses did not testify to the treasonable character of his meeting with the enemy agents. It was reversed because the Court found that the act which two witnesses saw could not on their testimony be said to have given assistance or comfort to anyone, whether it was done treacherously or not. To make a sufficient overt act, the Court thought it would have been necessary to assume that the meeting or talk was of assistance to the enemy, or to rely on other than two-witness proof. (at 635)
Here, on the contrary, such assumption or reliance is unnecessary — there can be no question that sheltering, or helping to buy a car, or helping to get employment is helpful to an enemy agent, that they were of aid and comfort to Herbert Haupt in his mission of sabotage. They have the unmistakable quality which was found lacking in the Cramer case of forwarding the saboteur in his mission. (at 635)
And also stated:
The Constitution requires testimony to the alleged overt act and is not satisfied by testimony to some separate act from which it can be inferred that the charged act took place. And while two witnesses must testify to the same act, it is not required that their testimony be identical. (at 640)
But what if the acts are of uncertain genesis? In Haupt, the defendant claimed that the acts of assisting his son were only natural, parental acts, not acts sufficient to satisfy the Constitution and statute.
It is urged that the conviction cannot be sustained because there is no sufficient proof of adherence to the enemy, the acts of aid and comfort being natural acts of aid for defendant's own son. Certainly that relationship is a fact for the jury to weigh along with others, and they were correctly instructed that if they found that defendant's intention was not to injure the United States but merely to aid his son "as an individual, as distinguished from assisting him in his purposes, if such existed, of aiding the German Reich, or of injuring the United States, the defendant must be found not guilty." [at 641) [emphasis added]
In other words, because of the high standards set for treason by the Constitution, the acts must be intentional acts and tend toward the accomplishment of the criminal object.
What Is War?
But in each instance, what does or does not constitute an act of “levying war” is really going to be a question of fact dependent upon the circumstances of each case.
So under both requirements contained in the Constitutional and statutory provisions. “war” is required. In order for someone to be an “enemy,” there must exist a state of declared or open war between the United States and that other nation. Speaking against the government, opposing governmental policies or even placing the interests of other governments ahead of those of the United States, are not legally defined as “treason.” Thus, even though supporting other governments might give them “aid and comfort,” it is not treasonous to do so if the United States and those other governments are not actually in a declared or open war. If there is no such state of war, then by the definition in the Constitution and statute, those countries are not “enemies.”
Some of you may remember when wars were “declared” by Congress under their authority in the Constitution (Article I, Section 8, number 11) (and some, even older, may remember when Congress acted in any manner). However, without such a declaration, in order to fall within the statute, there must be an “open war.” That latter definition requires some act of force be exerted against the United States designed to overthrow the government.
We go back to United States vs. Burr (25 Fed. Cas. 55, no. 14,693 C.C.D.Va. 1807). Justice Marshall stated:
Treason against the United States shall consist only in levying war against them." What is the natural import of the words "levying war?" and who may be said to levy it?
There is no difficulty in affirming that there must be a war or the crime of levying it cannot exist; but there would often be considerable difficulty in affirming that a particular act did or did not involve the person committing it in the guilt and in the fact of levying war.
War requires an:
“employment and exhibition of force”…and it would seem that in cases where no declaration is to be made, the state of actual war could only be created by the employment of force, or being in a condition to employ it. [emphasis added]
Who Can Be A Traitor?
The Constitution and the federal statute apply to any party, citizen of the United States or not, “owing allegiance to the United States.” While United States citizens owe a permanent allegiance to the United States whether they act within the country or outside of it, those parties not citizens but living within the boundaries of the United States owe a “temporary allegiance” to the country. If those non-citizens act contrary to the statute in other respects, the provisions that they owe an “allegiance” to the United States will be deemed satisfied. In Carlisle vs. United States (Carlisle v. United States, 83 U.S. 147 (1872), the Supreme Court held that aliens living in this country owed this allegiance.
Therefore, even if a government official or anyone else were to give away top secret information to the Russians say, for example, inside the Oval Office, or if that official were to, as another example, show allegiance or even fawning (“adhere”) to the Russians, it would possibly not be “treason” since our country may not be in a “declared or open war” with Russia. Although we are not in a declared war, whether or not we are in an open war seems unclear at this point. But assuming that no such state of war exists, such conduct might be considered as “espionage” or some other crime or it might be grounds for impeachment as a “high crime” or “misdemeanor,” but it would not likely be “treason.” Note that this might be argued the other way should the recipient of this information or behavior be North Korea, since there never has been a peace treaty with that nation after the Korean War. The same might be true as to non-state actors if the United States is deemed to be in a “declared or open war” with them.
Although the words “treason” and “traitor” are tossed around frequently, as you can see there is little substance to these words or the claims behind them in most instances.
It takes more than a tweet to make the case.
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Ivan Hoffman has been practicing intellectual property law for over 45 years and has written extensively about the topic. (www.ivanhoffman.com). Additionally, Ivan Hoffman has written numerous books about philosophy including “The Tao of Love” and “The Tao of Money.”
This article is not legal advice and is not intended as legal advice. This article is intended to provide only general, non-specific legal information. This article is not intended to cover all the issues related to the topic discussed. You should not rely on this article in any manner whatsoever and you should not draw any conclusions of any sort from this article. The specific facts that apply to your matter may make the outcome different than would be anticipated by you. This article is based on United States laws but the laws of other countries may be different. You should consult with an attorney familiar with the issues and the laws of your country. This article does not create any attorney client relationship and is not a solicitation.